' TALAAT QAYUM QURESHI, J.---Through this single judgment we shall decide Ehtesab Appeal No,5 of 2002 and Writ Petition No,448 of 2002 (Mst. Nasim Akhtar and others v. Judge, Accountability Court No,III, Peshawar and others) as both emanate from the judgment/order, dated 9-3-2002 passed by the learned Judge, Accountability Court No,III, Peshawar.
2. The Chairman, National Accountability Bureau filed Reference No,4 of 2001 against Ikram Shah, Executive Engineer C&W Department for accumulating and amassing Wealth, movable and immovable properties and assets worth Rs,4,29,70,609 through corruption and corrupt practices for trial of the above-named appellant under sections 9/10 of NAB Ordinance, 1999 (hereinafter referred to as the Ordinance) before the learned Judge, Accountability Court No,III, Peshawar.
3. The learned trial Court framed charge against the accused on 9-4-2001. He pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution examined as many as 23 witnesses. The statement of accused was recorded under section 342, Cr.P.C. And he also examined 9 witnesses in his defence.
In order to collect reliable data about the approximate income of the accused and his family members from agriculture property, the learned trial Court examined three Court-witnesses. The appellant was re-examined under section 342, Cr.P.C, after examination of three Court-witnesses.
The learned Judge, Accountability Court No,III, N.-W.F.P. Vide his judgment and order, dated 9-3- 2002 convicted and sentenced the appellant, to undergo:--
(a) Rigorous imprisonment for a term of 7 years and
(b) Fine of Rs,3,00,00,000 (Rupees three crore).
(c) The properties mentioned in tables Nos.2 to 14 which are still in the names of accused Ikram Shah, his wife Mst. Nasim Begum, sons Haroon and Imran, as well as daughters Marukh and Gulsanga, were forfeited to appropriate Government under section 10(a), NABO.
(d) The amount of Rs,9,63,000 in PLS Account No,3819-0 in National Bank of Pakistan, Maneri Branch, Swabi admittedly earned through sale of plot in Habibullah Colony, Abbottabad was also forfeited to appropriate Government under section 10(a) NABO.
(e) The fine mentioned above would be paid within one month to State failing which it would be set off against the forfeited property in terms of section 11, NABO.
(f) The accused, from this date, shall be disqualified for ten years for holding any public office in terms of section 15 of NABO.
(g) The benefit of section 382-B,Cr.P.C. Was extended to accused Being aggrieved with the said judgment/order, the appellant has filed appeal in hand.
5. Qazi Muhammad Anwar, Advocate the learned counsel representing the appellant argued that the prosecution has failed to make out a reasonable case against the appellant, in that it has failed to discharge its initial burden to prove prima facie case against the appellant, therefore, the burden of proof, did not shift to the appellant to rebut the presumption of guilt.
6. It was also argued that three properties i,e,
(i) Plot of land measuring 2 Kanals No,90-D, Street No,37, Phase-I, Hayat Abad, Peshawar in the name of wife of the appellant was allotted to her on 24-6-1979 against total price of Rs,74,000 which she paid in four monthly equal instalments.
(ii) Plot of land measuring 2 Kanals bearing No,3-G/4, Phase II, Hayat Abad was allotted in the name of Mst. Zakia Begum against total price of Rs,1,15,000 in the year 1982 the price of which was paid by her.
(iii) A plot of land measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad was purchased by Abdul Sattar father-in-law of appellant in the year 1973, The amount of sale consideration was paid by him and he remained in possession thereof till he died in the year 1980, ' These properties were allotted/purchased much prior to 1-1-1985 on which date NAB Ordinance, 1999 was made applicable, therefore, the abovementioned properties do not come under the purview of the Ordinance and if at all it was considered that the said properties fall under the purview of the Ordinance, then in that case, the prosecution has failed to prove that the said properties were purchased by the appellant and the two ladies and Abdul Sattar were holding those properties as "Benamidars".
7. It was also argued that Mst. Nasim Akhtar, wife of appellant and his children were regular assessees of Income-tax and Wealth Tax and documents to this effect were produced by the D.Ws.
But the Court failed to examine the same.
8. It was also argued that the appellant ' had inherited sufficient landed property from his father way back in the year 1972, which was "under his self-cultivation. He had been gifted land measuring 24 Kanals by his father in the year, 1950. The learned trial Court did not properly appreciate his income derived from agrkulture property and while assessing the said income the learned trial Court has evolved a formula of its own, which has no basis at all. It failed to appreciate that the income derival from his agriculture property justify his assets. Q. It was further argued that Abdul Sattar, father of Mst. Nasim Akhtar. Wife of appellant died in the year 1980. Mst. Nasim Akhtar had not inherited any property from him. On his death a plot of land measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad, devolved upon L.Rs, of Abdul Sattar including Mst.
Nasim Akhtar. The brothers and sisters of Mst. Nasim Akhtar surrendered their shares in the said plot to Mst. Nasim Akhtar. The said plot was sold by her against sale consideration of Rs,10,58,999.
Neither the amount earned by the sale of said plot was considered as legitimate earning of Mst.
Nasim Akhtar nor sum of Rs,5,000 paid by Abdul Sattar per month to his daughter (wife of appellant) as pocket money were taken into account, hence the learned trial Court committed illegality.
10. It was further argued that the appellant had proved through reasonable evidence that the properties mentioned in the charge were purchased by him through his hard earned money and his family had sufficient agricultural income, but the evidence produced by the appellant was ignored altogether. It was prayed that the conviction and sentence be set aside and the appellant be set free.
11. On the other hand Mr. Kamran Arif, the learned counsel representing NAB/State argued that the prosecution had through reliable evidence proved its case. The burden to rebut the case had shifted to the appellant which he failed to discharge, therefore, the conviction and sentence awarded by the learned Court below are based on proper appreciation of evidence and law applicable to the case.
12. It was also argued that it was established through evidence of prosecution that the income of the appellant from his agriculture property was meagre, appellant and his family's life style was lavish and the properties purchased by him in his own name and in the name of his family members were purchased with the ill-gotten money.
13. It was further argued that 'Takhmina Paidawar' produced by the Court-witnesses fully indicated the amount earned by appellant from his agriculture property and the appellant failed to rebut the same. He also failed to show that he earned more amount than mentioned in "Takhmina Jat".
14. We have heard the learned counsel for the parties and perused the record.
15. The argument of the learned counsel for, the appellant that the prosecution has failed to make out a .Reasonable case against the appellant, in that it has failed to discharge its initial burden to prove prima facie case against the appellant, therefore, the burden of proof did not shift to the appellant to rebut the presumption of guilt, has no force in it. Section 14 of the Ordinance deals with the presumption against the accused. According to this section if a person is charged under clause (vi) or clause (vii) of subsection (a) of section 9 of the Ordinance it is the prosecution which shall first make out a reasonable and prima facie case against the accused and the mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of the abovementioned section NAB Ordinance. In section 14(c) the legislation in its own wisdom has used words 'unless the contrary is proved' which means the contrary can only be proved by accused if earlier something has been proved against him, that is the burden shall shift to the accused to prove to the contrary if some case has been made out against him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit or favour. Unless the facts constituting misuse of authority as contemplated under ,section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In such a case the prosecution would be duty bound to lead evidence against the accused and then he would be called upon to prove his innocence. In the recent judgment titled Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607. In paragraph 230 it was observed:-- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above I provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is - held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the, following directions for effective operation of section 14(d):
(1) The prosecution shall first make out a reasonable case against the accused charged under section 9 (a)(vi) and (vii) of the NAB Ordinance.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
16. Similarly in Dr. Farooq Sattar v. The State Criminal Appeal No,1160 of 2000 decided on 20-9-2001 by Lahore High Court it was held:-- "There is considerable force in the arguments raised by the learned counsel for the appellant. The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accused could be called upon to make a statement under section 342 of the Cr.P.C. And then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had 'misused' his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or wilfully failed to exercise his authority to prevent that grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Unless the basic facts constituting 'misuse' of authority as contemplated under section 9(a)(vi) of the Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In this connection, reliance can be placed on a recent judgment of the Honourable Supreme Court of Pakistan in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division; Islamabad and others PLD 2001 SC 607 paras. 230 and 231 reproduced.)."
17. The august Supreme Court of Pakistan in Messrs Ilahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 defined the word "reasonable" as under:-- "That the word 'reasonable' is a relative genric term difficult of adequate definition. It inter alia connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the Constitutional bounds."
18. The august Supreme Court of Pakistan in Khan Asfandyar Wali's case has held that the prosecution if succeeds in making out a reasonable case, to the ' satisfaction' of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shifts to the accused to rebut the presumption of guilt. Similarly in section 14(c) of the Ordinance the language used is "he cannot satisfactorily account". The satisfaction of the Court must be' based on proper determination from all facts and circumstances of the case, be real, bona fide and not by malice. In Syed. Saeed Hassan v. Payar Ali and 7 others PLD 1976 SC 6 while examining the connotation and implication of the expression satisfaction, their Lordships laid down:- " ' Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. 'Satisfaction' is the existence of a state of mental persuation much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the 'legal satisfaction' which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince.
Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In corpus juris secundum 'satisfy' has been held to be synonymous with, 'convince beyond a reasonable doubt' and 'satisfaction' has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary 'to satisfy' means to furnish with sufficient proof or information or to fissure or set free from doubt or certenty to convince. "
19. In the case, in, hand the prosecution has made out thing/facie case by placing on record sufficient evidence oral as well as documentary to the satisfaction of the Court that the appellant and his family members i,e, his wife, sons and daughters did not have ostensible means to purchase such huge properties mentioned in the Reference and whatever they have purchased in the shape of movable, immovable properties and assets were purchased through ill-gotten money. The burden to prove that the properties both movable, immovable and assets were purchased/made by the appellant and his family members through their legally earned money had, therefore, shifted to the appellant and his family members who had been served with notice by the learned trial Court to justify their earnings.
20. So far as the argument of the learned counsel for the appellant that three properties mentioned in para.6 were not "Benami" and the persons holding the same were not "Benamidars" has a great deal of force in it. Before we dilate upon the evidence to find out as to whether these properties were purchased by the appellant in the names of others, who were holding the same as "Benamidars", we feel it appropriate to see as to what is "Benami" transaction. The word "Benami" has not been defined in the Ordinance. This word has only been defined in section 82 of the Trust Act, 1882, which reads as under:-- "Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration."
21. The transactions which were termed as "Benami" were dealt with in a case titled as Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 in the following words:-- "The word 'Benami' is used ' to denote two classes of transactions which differ, from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for,example when 'A' sells properties to 'B' but the sale-deed mentions 'X' as the purchasers.
' Here the sale itself is genuine, but the real purchaser is 'B', ' X' being his Benamidar. This is the class of transactions which is usually termed as Benami. But the word 'Benami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when ' A' purports to sell his property to 'B' without intending that his title should cease or pass to 'B'. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or 'B', to enquire into the question as to who paid the consideration for the transfer, 'X' or 'B'. But in the latter class of cases, when the question is whether the transfer is genuine or sham the point for decision would be, not who paid the consideration, but whether any consideration was paid. (See Sres Meenakshi Mills Ltd. Maduraj v.
Commissioner of Income-tax Mad. AIR 1957 SC 149)." alia the following factors are to be taken into consideration:--
(i) Source of consideration;
(ii) from whose custody the original title deed and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for the Benami transaction."
23. In para. 7 of the said judgment their Lordships affirmed:--- "It is also well settled Law that the initial burden of proof is on the party, who alleges that an ostensible owner is a 'Benamidar' for him and that the weaknesses in defence evidence would not relieve a plaintiff from discharging the above burden of proof."
24. The following judgments can also be safely cited in support:--
(i) Ch. Rehmat Ali v. Abdul Khaliq through his L.Rs, and another 2000 M LD 1948, (ii) Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCM R 806, (iii) M.D. Abdul Majid and others v. Dr. Zainul Abidin and others PLD 1970 Dacca 414 and (iv) Ismail Dada Adam Soomro v.
Shorat Banoo and others PLD 1960 Kar.
852.
22. Likewise the august Supreme Court of Pakistan in Muhammad Sajjad Hussain v, Muhammad Anwar Hussain 1991 SCM R 703 held:-- "Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter In the light of criteria laid down by the august Supreme Court of Pakistan and judgments cited above we now proceed to examine the evidence produced by the prosecution to find out as to whether the three properties mentioned in paragraph No,6 of this judgment i,e, two plots situated at Hayat Abad and the third one at Habibullah Colony Abbottabad were held by the wife, aunt and father-in-law of the appellant as "Benamidars".
25. So far as Plot No,90-D measuring 2 Kanals situated at Street No,3737, Phase I, Hayat Abad, Peshawar is concerned, it is on record that this plot was allotted to Mst. Nasim Akhtar 'wife of appellant, vide allotment order Exh.P.W.9/2. Possession of the said plot was also handed over to her vide possession certificate Exh.P, W.9/3. She paid the amount of sale consideration through four equal six-monthly instalments. Mst. Nasim Begum in her written statement filed before the learned Accountability Court has stated that her father used to pay Rs,5,000 per month and out of the said amount she saved sufficient amount and paid the instalments. Even if the amount of Rs,5,000 per month given by her father is not admitted, then it appeals to the reasonable mind that a lady who is wife of an Engineer having good agriculture background could easily save something per month and pay the amount of Rs,74,000 in four equal six-monthly instalments. This plot was transferred by Mst. Nasim Akhtar in the name of her son Imran Ikram on 7-2-1994 vide Exh.P.W.9/4. The abovementioned facts were confirmed by Parvez Alam, Deputy Director, PDA, who was examined as P.W.9 by the prosecution. The learned Accountability Court in paragraph No,76 of the impugned judgment has accepted this plot to have been purchased from validly earned income, therefore, this property cannot be termed as "Benami".
26. A piece and parcel of land measuring 2 Kanals bearing No,3-G14 situated at Phase II, Hayat Abad was allotted to Mst. Zakia Begum (paternal-aunt of appellant) vide alltitment letter Exh.P.W.9/12 for a sale consideration of Rs,1,15,000 on 10-5-1982. Possession was handed over to her vide possession certificate Exh.P.W.9/14. She paid the sale price in four equal instalments. She transferred the said plot in favour of Haroon Ikram (son of appellant) vide transfer deed Exh.P.W.9/15. Parvez Alam (P.W.9) admitted in cross-examination that the sale price was paid by Mst. Zakia Begum and possession had been handed over to her. Mst. Zakia Begum is the paternal- aunt of the appellant and it is on record that her brother owned sufficient agriculture land as he in his life time had gifted land measuring 24 Kanals to appellant in the year 1950 and on his death, his L.Rs, inherited sufficient landed property left by him. Since this lady belonged to a rich agriculturist family, therefore, payment of Rs,1,15,000 that too through.Four equal six-monthly instalments was not unbelievable phenomenon. It is also in evidence that she was unmarried. If she had gifted this plot of land to her minor grandson, this was also not unusual. The case of the prosecution was that this property alongwith property mentioned in the above paragraph (Plot No,90-D) was purchased by Ikram Shah, appellant in the names of his wife and paternal-aunt as "Benami" but prosecution has failed to prove this fact. The learned Court below has gone a step forward than the prosecution case while declaring that transfer of this plot in the name of Haroon Ikram was not a gift and a "Benami" purchase by appellant in the name of his son. When the prosecution case was that originally this plot was purchased by appellant in the name of his paternal-aunt, which it failed to prove. It was not the case of prosecution that the subsequent gift/sale in favour of Haroon Ikram was "Benami". On failure of prosecution to prove that the first allotment in favour of Mst. Zakia Begum was "Benami". The subsequent transfer in the name of her grandson could not be declared as "Benami". Another factor in which the Court has gone beyond the prosecution case is that Plot No,2- G/4 measuring 2 Kanals situated at Phase-II, Hayat Abad was not included in the Reference.
Since Haroon Ikram on 27-101997 had exchanged Plot No,3-G/R (transferred to him by Mst. Zakia Begum) with Plot No,2-G/4 vide exchange deed Exh.P.W.9/11 of Syed Ali Hayat, therefore, Plot No,2- G/4 was also included in the impugned judgment. The prosecution, as mentioned above, has failed to prove that plot allotted to Mst. Zakia Begum was purchased by Ikram Shah, the appellant in her name as "Benami", it also failed to prove that appellant paid the sale consideration and that possession of the said plot was handed over to him. Since the first transfer/allotment could not be proved as "Benami", therefore, all the subsequent transfers would be considered as proper and legal transfers.
27. Regarding plot of land measuring one Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad the prosecution examined Jehanzeb, Patwari Halqa Nawan Sher (Shumali), Abbottabad, who was examined as P.W.23. He placed on record copy of Fard Jamabandi for the year 1994-95 Exh.P.W.23/2. Copy of Fard Jamabandi for the year 1982-83 Exh.P.W.23/3. According to this Jamabandi Mst. Nasim Begum was shown as owner of the said land. In cross-examination he admitted that vide Mutation No,8093 attested on 28-2-1973 (wrongly mentioned on 28-2-1993) an area measuring 5 Kanals was purchased out of which one Kanal, 10 Marlas was mutated in favour of Abdul Sattar Khan son of Sultan Muhammad Khan. The said mutation was placed on record as Exh.P.W:23/D-1. He further admitted that inheritance Mutation No,8329 was attested on 4-11-1980, in favour of legal heirs including Mst. Nasim Begum, copy Exh.P.W.23/D-2. He also admitted that vide Mutation No,8330 attested on the same day, the heirs of Abdul Sattar Khan gifted their share to their sister Mst. Nasim Begum, copy of the mutation is Exh.P.W.23/D-3. In this way Mst. Nasim Begum became sole owner of plot measuring 1 Kanal, 10 Marlas on 4-11-1980, out of which she sold 1 Kanal, 8 Marlas for Rs,10,58,999 vide Mutation No,10755, copy is Exh.P.W.23/D-4. He stated that the total sale consideration mentioned in Mutation No,10755 was Rs,35,30,000, but share of Mst. Nasim Begum was Rs,10,58,999. The above discussed evidence available on record proved the fact that this plot was purchased by Abdul Sattar father of Mst. Nasim Begum way back in the year 1973 and he was handed over the possession, which he retained till his death. Not a single witness produced by the prosecution uttered any word that the plot in question was purchased by the appellant or that he was the person who negotiated the sale in favour of Abdul Sattar, his father-in-law. The prosecution has only produced Patwari Halqa, who placed on Record Revenue papers showing that Abdul Sattar was the owners of the abovementioned plot. This is also the case of the defence that the abovementioned plot had nothing to do with the appellant as the same was purchased by Abdul Sattar by paying money from his own pocket.
28. When we examined the prosecution evidence regarding three properties discussed above, on the touchstone of judgment of august Supreme Court of Pakistan in case titled Muhammad Sajjad v. Muhammad Anwar Hussain 1991 SCM R 703, we find that not a single prosecution witness has stated that these three properties were purchased by the appellant in the names of his wife, paternal-aunt and father-in-law and the amount of sale consideration or any instalmentwas paid by the appellant. There is also nothing on record to show that the possession of the abovementioned properties were handed over to the appellant. In fact the two ladies were handed over the possession of the plots situated at Hayat Abad, whereas Abdul Sattar (late) remained in possession of the said plot since its purchase till his death in the year, 1980. The documents of title were also not recovered from 'the possession of the, appellant. The prosecution has also failed to prove the motive for purchase of said properties in the names of "Benamidars".
36(i) So far as plot of land measuring 1 Kanal, 17 Marlas situated at Sugar Mills Road Halqa Mardan, purchased vide Mutation No,14387, 14388, 14389, 14390 and 14391 attested on 14-4-1994 Exh.P.W.3/3 to Exh.P.W.3/7, in the name of Mst. Nasim Begum, wife of appellant, Haroon, Imran sons, Mst.
Mahrukh and Mst. Gul Sanga daughters is concerned, the appellant in reply to Question No,6 in his statement recorded under section 342, Cr.P.C. Admitted that this plot was purchased by his wife Mst. Nasim Begum in her own name and in the names of her children.
(ii) Plot measuring 6 Kanals situated at Nisata Road, Mardan Purchased vide Mutation No, 10838 attested on. 15-9-1990 Exh.P.3/16 and Mutation No,16423 attested on 23-11-1994 Exh.P.W.3/17 in the name of Haroon, Imran sons, Mst. Mahrukh and Mst. Gul Sanga daughters, appellant in answer to Question No admitted that he purchased these properties in 1990 from his agricultural income.
(iii) Plot measuring 12 Kanals, 14 Marlas in Chak Mardan purchased vide Mutation No, 1846 attested on 27-10-1999 Exh.P. W .3/8 in the names of Haroon'and Imran sons. He admitted while replying Question No,8 that he had purchased this property in the names of his sons from his agricultural and commercial income.
(iv) Land measuring 65 Kanals, 4 Marlas and 2 Sarsaies at Chak Mardan purchased vide Mutation No,581 attested on 29-5-1996 Exh.P.W.3/9, Mutation Nn. 9971 attested 0, 16-3-1991 Exh.P.W.3/10 at Mutation No, 11656 attested 31-7-1994 Exh.P.W.3/11 in ,mes of Ikram Shah (appellan Haroon and Imran sons of appellant. The appellant in answer to Question No,9 admitted that he purchased this property from his agricultural and commercial income.
(v) Land measuring 59 Kanals, 7 Marlas in Chak Mardan purchased vide Mutation No, 1126 attested on 30-10-1997 Exh.P.W.3/12 in the names of Mst. Gul Sanga and Mahrukh, daughter of appellant. He also admitted having purchased this property in the names of his daughters while answering Question No,10.
(vi) Land measuring 11 Kanals, 11 Marlas in Mauza Feroz Pur (Takht Bhai) purchased vide Mutation No,293 attested on 16-6-1999 Exh.P.W.4/4 in the name of Mst.
Nasim Begum. While reply Question No,13, the appellant admitted having purchased this plot against sale consideration of Rs,2,00,000 in the name of his wife. It is evident from his statement recorded under section 342, Cr.P.C. That the above mentioned properties were purchased as "Benami" in the names of his wife and children by the appellant. The burden to prove that the said properties were purchased/ acquired by his hard earned money rests with the appellant.
29. The following properties were also purchased by the appellant in his own name:--
(a) Land measuring 7 Kanals, 8 Marlas purchased vide Mutation No,9322 attested on 30-10-1990 Exh.P.W,3/13.
(b) Land measuring 65 Kanals, 4 Marlas and 2 Sarsaies in Chak Mardan was purchased vide Mutation No,581 attested on 29-5-1996 Exh.P.W.3/9, Mutation No, 9971 attested on 16-3-1991 Exh.P.W.3/10, Mutation No,11650 attested on 31-7-1994 Exh.P.W.3/11.
(c) Land measuring 14 Kanals, 17 Marlas in Chak Mardan vide Mutation No, 9025 attested on 25-4- 1989 Exh,P.W.3/14.
(d) Land measuring 35 Kanals, 9 Marlas in Ferozpur (Takht Bhai) vide Mutation No, 40 attested on 21-9-1992 Exh. P W .4/2.
(e) Land measuring 1 Kanal in Ferozpur (Takht Bhai) vide Mutation No,41 attested on 21-9-1992 Exh.P.W.4/3.
(f) Plot No,48 Sector 'N' measuring 1 Kanal m Hayat Abad was allotted vide allotment order, dated 26-10-1987 Exh.P.W.9/12.
(g) Plot No,172/F in Kanju, Swat vide allotment order, dated 1-8-1991 for RS1.1,50,000.
30. The burden of proof that he had sufficient money to purchase these properties was also on the appellant. Now we proceed to see as to what was the income of the appellant and his wife.
' We first take the income of Mst. Nasim Akhtar, wife of the accused.
31. Mst. Nasim Akhtar in her written statement mentioned the following sources of income:--
(i) Her father was paying Rs,5,000 per month as pocket money;
(ii) At the time of her marriage, her father gifted her Jewellery worth Rs,1,00,000.
(iii) Mother of appellant gifted gold ornaments, weight and price not mentioned;
(iv) " Income from agriculture property owned by her.
32. So far as payment of Rs,5,000 as pocket money by her father to Mst. Nasim Akhtar is concerned, there is no evidence on record to show the said payment. She was married to the appellant in the year 1971 and her father died in the year 1980. There is no evidence regarding the income of the father of Mst. Nasim Akhtar during the abovementioned period. The factum of payment of Rs,5,000 to her has not even been stated by her husband, therefore, the learned trial Court has rightly discarded this income. The reasoning given by the learned trial Court is proper, cogent and convincing. -
33. There is no evidence available on record to prove that her father had given jewellery worth Rs,1,00,000 and that her mother-in-law had also given her huge jewellery as no witness has been examined by her in this regard. So far as her income from agriculture property is concerned, there is no evidence to show as to what was the property she owned and how much was her income? It is on record that Abdul Sattar her father died in the year 1980. Mst. Nasim Akhtar did not inherit any property from her father. She only inherited 11 Kanals, 11 Marlas from her brother vide Mutation No,259 attested on 11-8-1998 Exh D W .4/N-1 . No 'Takhmina Paidawar' or any other evidence regarding this property was produced by her and in absence of any evidence, it cannot be presumed as to what kind of crop was sown in the property and what was her income. It is on record that on the death of her father, her brothers and sisters relinquished their shares (though disputed by the prosecution) in plot of land measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad, therefore, she became sole owner of the said plot which she sold against sale consideration of Rs,10,58,999. The only income which she could prove on record was the abovementioned sale consideration of Rs,10,58,999.
34. Now we revert to the income of appellant.
35. Admittedly there were two sources of income of the appellant.
' (i) Salary and (ii) Agriculture income.
36. So far as the salaries/pay is concerned, he had during his service earned Rs,17,46,480. There is no dispute about the said income between the parties i,e, the prosecution admits that the above mentioned amount was earned by appellant as his salaries.
37. So far as his agriculture income is concerned, the prosecution as well as defence are at variance: The claim of the prosecution is that the agriculture income of the petitioner was meagre.
His expenditures towards his living were on very high side, therefore, he could not purchase properties mentioned in the Reference and whatever properties he had purchased, either in his own name or in the names of his wife, sons and daughters were purchased by ill-gotten money.
The claim of defence is that the appellant had sufficient agriculture income and it was with the said income that he has purchased the properties, therefore, no crime has been committed by him.
38. It is an admitted position that the appellant was gifted land measuring about 24 Kanals situated at Mauza Sheikh Yousaf by his father in the year 1950. This property was mutated in his name vide Mutation 768 attested on 14-6-1950 it is also an admitted position that the appellant was transferred land measuring 84 Kanals, 5-1/2 Marlas by his mother as is clear from Exh.P.W.2/10 and Exh P W .3/15 .
39. The prosecution in order to prove the agriculture income of the appellant, examined Said Badshah Office Qanungo Tehsil Mardan (P.W.3) who produced Goshwara of the approximate income (Takhmina Paidawar) of the appellant from 1985 to, 2000 Exh.P.W.3/1 and Exh.P.W.3/2. In order to rebut the said approximate income given by the said P.W., the appellant examined Momin Khan, Patwari Halqa as D.W.4, who placed on record Goshwara Paidawar regarding land measuring 59 Kanals, 12 Marlas for the year 1993-94 Exh.D.W./1. Muhammad Nawaz Khan, Patwari Halqa Chak Mardan was also examined as D.W.5, who also placed on record Goshwara Paidawar for the years 1995 to 2000-2001 Ddi.D.W.5/1. Muhammad Amin, Director-Cereal Crops Research Institute, Pir Sabaq (D.W.6) who placed on record price table showing per Acre yield of maize crop which was exhibited on record as Exh.D.W.6/l. Dr. Gul -Rahman, Director, Sugar Cane Botanist, Sugar Crops Research Institute, Mardan was examined as D.W.7 who stated that in Mardan/Takht Bhai per Acre produce of Sugar Cane was 700 to 1000 per maund per Acre. Mian Muhammad Mukhtiar, Deputy Chief Agriculture Prices Commission, Ministry of Food, Agriculture and Livestock, Government of Pakistan Islamabad provided Sugarcane prices from 1976-77 to 2000-2001 fixed by the Government of Pakistan. Mr. Wasil Khan, Superintendent Food Directorate Government of N.- W.F.P. Placed on record Sugar... Beet prices fixed by Government of N.-W.F.P. Per maund from 1976 to 2001. The same were placed on record as Exh.D.W.9/1.
40. The evidence produced by the prosecution as well as by the appellant did not clarify as to what amount was earned by the appellant from his agriculture property mentioned in para.37 above, therefore, the learned trial Court summoned Court-witnesses so that with the help of the Revenue Record and Revenue Officers, the agricultural income of the appellant could be ascertained. Jalal Khan Office Qanungo Tekht Bhai was examined as C.W.1, who placed on record Jar Paidawar as Exh.C.W.1/1 and Exh.C.W.1/2. Ambaras Khan, Office Qanungo, Mardan was examined as C.W.2, who also placed on record Goshwara Takhnuna Paidawar as Exh.C.W.2/1 to Exh.C.W.2/11. Said Badshah Patwari was examined as C.W.3. The learned counsel for the appellant strongly objected to the procedure adopted by the learned trial Court for examination of the Court-witnesses. His objection was that the appellant was directed by the learned trial Court to cross-examine the Court- witnesses first and then the prosecution was invited to cross-examine the said witnesses, which procedure caused prejudice to the case of the appellant because after the cross-examination of the Public Prosecutor, appellant could not rebut whatever was stated by the said C.Ws. The objection of the learned counsel for the appellant was genuine, therefore, this Court summoned the C.Ws. Again for cross-examination of the learned counsel for the appellant. Jalal Khan C.W.1 was cross-examined on 7-6-2002. During cross-examination copy of 'Narkh Nama Chakwar' was placed on record as Exh.C.W.1/D-1 and copy of Khasra Girdawari from 1992 up to date was exhibited as Exh.C.W.1/D-2. Ambaras Khan (C.W.2) was cross-examined on 19-6-2002. He also produced during the cross-examination 'Narkh Nama Chakwar' Exh.C.W.2/X-1, 'Jar Paidawar' of 1925-26 Exh.C.W.2/X-2. The learned counsel for the parties again addressed their arguments after the C.Ws.
Mentioned above were cross-examined.
41. The learned trial Court not only discarded the evidence produced by the prosecution but it also did not accept the evidence produced by the defence regarding the agricultural income of the , appellant. Reliance was placed on the statements of C.Ws. And documents produced by them. The learned trial Court calculated average income for 24 Kanals of land situated at village Sheikh Yousaf, District Mardan from 1950 till filing of the Reference as Rs,2,35,900. For land measuring 84 Kanals situated at Chak Mardan a sum of Rs,19,09,980 as agricultural income of the appellant. The main thrust of the arguments of the learned counsel for the appellant was that in Goshwara Paidawars Exh.C.W.1/1 to 1/2, Exh.C.W.2/1 to C.W.2/11 yield at the rate of produce in Schedule for the year 1925-26 has been given. The argument of the learned counsel for the appellant that yield per acre has increased manifold. Similarly the prices have also tremendously increased from 1972 till filing of the Reference has a force in it. Goshwara Paidawars produced by C.Ws. i,e, Exhs.C.W.1/1, 1/2, Exh.C.E.2/1 to C.W.2/11 do not give true picture of the agricultural income of the appellant, therefore, the same (Goshwara Paidawar Exhs.C.W.1/1, 1/2 and 2/1 to 2/11) cannot be relied upon and made basis for ascertaining the agricultural income of the appellant for the reasons firstly, the yield which would be obtained in the year 1925-26 has been taken in the said Goshwaras. For example as per Exh.C.W.2/1 in 1985 land measuring 23 Kanals, 15 Marlas would produce only 480 Pucca Seers of wheat and similarly in the year 2000 also the same land would produce 480 Pucca Seers but the fact is that as per Exh.D.W.6/1 in 1987 only land measuring 20 Kanals would yield 4 tons of wheat i,e, 4480 Seers (4 x 28 x 40 = 4480). Therefore, 24 Kanals should have yielded 5376 Seers of wheat in 1987 but this produce was not shown in Exh.C.W.2/1. It is a matter of common knowledge that due to modern techniques and scientific advancement the production has manifold increased during past years, but this fact was altogether ignored. Secondly, the market rates were also not applied while determining the agricultural income. Old rates with old formula was made applicable i,e, for produce of 1985 seven Chittanks' were given out 16 Chittanks' and for the year 2000 three (3)
'Chittanks' were given out of 16 Chittanks' . NeithFr the daily rates Register was produced nor the same is kept now-a-days. In old good days each Tehsildar used to keep daily commodities Registrar wherein daily entries about the market rates of various everyday commodities would be entered and signatures/thumb-impression of shopkeepers would be taken, if any need to check the market rates of any of the daily used commodities would arise, reference to the said Register would be made and the exact market rate of such a commodity would be found out. What to speak of the _daily market rate register, the 'Jhar Paidawar' of Mardan (2 sheets) of 1925-26 was not revised though settlement in Mardan District was completed in 1991. It is pathetic to note that people of Mardan District are still being given produce by the Revenue Courts according to 'Jhar Paidawar' of 1925-26. The S.M.B.R. Is directed to direct the concerned Revenue officials to revise the 'Jhar Paidawar' immediately. It is worth-mentioning here that the prices of various produces have also undergone tremendous increase in recent past but this fact was also ignored by the learned trial Court. We, therefore, do not rely upon Exhs.C.W.1/1, 1/2 to 2/11.
42. The question that would arise here is as to what would be evidence which shall be taken into consideration for calculating the agricultural income of the appellant. As observed earlier, it was the duty and burden of the appellant to show that he had purchased the properties mentioned in the reference in his own name and names of his wife and children through his hard earned white money. To show agricultural income he did not bother to produce any of his land tiller/peasant tenant/cultivator/worker or labourer who could testify that so and so crop was sown in the land of the appellant in so and so year. No one has deposed that the land owned by the appellant was irrigated land. None has given evidence that best seed and fertilizer was used by the appellant.
There is nothing on record to show that produce of sugarcane was sold to Sugar Mills or 'Gur' was made out of the same and specific amount was thus earned. There is also no evidence about the yield of wheat, maize and sugar beet and income derived out of the sales.
43. The appellant only produced experts who have given sweeping statements showing best and ideal yield of sugarcane, sugar beet, wheat and maize grown in the research centers. None of the experts (D.Ws.) made reference to the land of the appellant. The learned counsel for the appellant left to this Court to calculate the agricultural income of appellant, by giving him best yield and the support prices fixed by the Government of N.-W.F.P. From time to time mentioned in Exhs.D.W.8/1 and,9/1.
44. Although the said Goshwaras show that various crops were grown at small pieces of land by the appellant, but we decided to calculate the agricultural income of the appellant on the basis of two major crops i,e, sugarcane and wheat per annum on the total land i,e, 108 Kanals owned by him. In order to calculate the agricultural income of the appellant, we have 'worked out the same on the basis of latest yield per Acre (i,e, yield obtained in the year 2000) with the support prices fixed by Government from time to time mentioned in Ddis.D.W.8/1 and 9/1.
45. So far as the yield of sugarcane crops is concerned, the appellant in order to show per Acre yield examined Mr. Gul Rehman, Director, Sugarcane Botanist of Sugarcane Crop Research Institute, Mardan as D.W.4, who in the examination-in-chief stated:-- "In Mardan and Takht Bhai a farmer cultivating sugarcane crop can get a production of 700 to 1000 maunds per Acre."
46. In cross-examination he admitted that yield of sugarcane per Acre depends upon the variety of seeds, the soil and other relevant conditions, like input fertilizers, water and also the efforts. The per Acre yield of sugarcane given by this witness is in fact the ideal yield. However, in order to give maximum benefit to the appellant we have calculated per Acre yield of sugarcane crop at the rate of 700 maunds per Acre as stated by D.W.4. The appellant in toto owned 108 Kanals of land (24 Kanals in Mauza Sheikh Yousaf and 84 Kanals in Chak Mardan). The income of 108 Kanals of land from Sugarcane production at the rate of 700 maunds per Acre as per support prices fixed by the Government of N.-W.F.P. From time to time Exh.D.W.8/1. Since the support prices given in Exh.D.W.8/1 commences from 1976-77, therefore, we have also calculated the same from the, said year. From the years 1950-1972 @ 500 per maund per Acre @ 5.89 per 40 Kgs. For 24 Kanals Rs,8,835 x 22 = Rs,1,94,854. For the past years i,e, with effect from 1972 till 1976 we have calculated @ 500 per Acre and have given the support prices fixed in 1976. It is worth-mentioning here that for the years 1950- 72 we have given support prices @ 5.89 (per 40 Kgs.) because no other piece of evidence is available on record.
47. Sugarcane 500 per maund per Acre from 1950-72 comes to Rs,1,94,370 and from Exh.D.W.9/1 start from the year 1976, 1972-1975 comes to Rs,39,757 x 4 = therefore, we have calculated the income Rs,1,59,028. From wheat production as under:-- {{TABLE}} Year of produce Income derived. Year of Produce Rate per ton Total price Bhusa 1976-77 Rs,55,660 1950-1972 for 24 Rs,991.32 Rs,1,04,676 Rs,79,200 1977-78 R9.55,660 Kanals 1978-79 ' ' Rs,55,660 1972-1975 Rs,99I.32 Rs,86.600 Rs,64.000 1979-80 Rs,68,323 1976-77 Rs,991.32 Rs,21,650 Rs,16,203 1980-81 Rs,88,641 1977-78 Rs,991.32 Rs,21,650 Rs,16,200 1981-82 Rs,88,641 1978-79 Rs,1,205.65 Rs,26,331 Rs,16,200 1982-83 Rs,88,641 1979-80 Rs,1,250 Rs,27,300 Rs,16,200 1983-84 Rs,88,641 1980-81 Rs,1,450 Rs,31,668 Rs,16,200 1984-85 Rs,88,641 1981-82 Rs,1,450 Rs,31,668 Rs,16,200 1985-86 Rs,88,641 1982-83 Rs,1,600 Rs,34,944 Rs,16,200 1986-87 Rs,1,08,864 1983-84 Rs,1,600 Rs,34,944 Rs,16,200 1987-88 Rs,1,08,864 1984-85 Rs,1,750 Rs38,220 Rs,16,200 1988-89 Rs,1,16,424 1985-86 Rs,2,000 Rs,43,680 Rs,16,200 1989-90 Rs,1,27,575 1986-87 Rs,2,000 Rs,43,680 Rs,16,200 1990-91 Rs,1,44,112 1987-88 Rs,2,062 Rs,45,045 Rs,16,200 1991-92 Rs,1,44,112 1988-89 Rs,2,125 Rs,46,410 Rs,16,200 1992-93 Rs,1,48,837 1989-90 Rs,2,400 Rs,52,416 Rs,16,200 1993-94 Rs,1,65,375 1990-91 Rs,2,800 Rs,61,152 Rs,16,200 1994-95 Rs,1,70,100 1991-92 Rs,3,100 Rs,67,704 Rs,16,200 1995-96 Rs,1,93,725 1992-93 Rs,3,250 ' Rs,70,980 Rs,16,200 1996-97 Rs,2,03,175 1993-94 Rs,4,000 Rs,87,360 Rs,16,200 1997-98 Rs,2,26,800 1994-95 Rs,4,000 Rs,87,360 Rs,16,200 1998-99 Rs,3,30,750 1995-96 Rs,4,325 Rs,94,458 Rs,16,200 1999-20091, Rs,3,30,750 1996-97 Rs,4,325 Rs,94,458 Rs,16,200 Total Rs,36,40,010 1997-98 Rs,7,000 Rs,1,52,280 Rs,16,200 1998-99 . Rs,7,102 Rs,1,55,108 Rs,16,200 1999-2000 ' Rs,7,102 Rs,1,55,108 Rs,16,200 rotal Rs,17,38,550 Rs,5,32,800
48. Now we proceed to calculate the income of the appellant from wheat production. We have taken wheat as a second crop sown over the total land owned by the appellant i,e, 108 Kanals. The maximum Price of Bhusa from 1972 to 2000 of 108 yield per hectare shown by Exh.D.W.6/1 Kanals Rs,4,53,600 + Rs,79,200 = fact the income of Bhusa for 24 Kanals at the rate of Rs,150 per Kanal for period from 195& till 1972.
49. We may mention here that there is no evidence available on record to indicate that the appellant remained in possession of land measuring 24 Kanals situated at Mauza Sheikh Yousaf, District Mardan from 1950 i,e, from the date the said land was gifted in his favour till 1972, when his father expired. But still in order to administer justice, we have given him agricultural income of sugarcane and wheat from 1950. We have given the amount of Bhusa at constant rate because wheat and sugarcane both were sown on small fragments of land by the appellant. Moreover, the major portion of land was given on Ijara by appellant, but we have ignored these factors.
50. The total agricultural income of the appellant from 1950 till 2000 comes to Rs,59,11,360. We did not exclude 10% expenses also from the said income. Since the first amount was spent on construction of house at Hayatabad in the year, 1987, therefore, from the year 1987 onward we have calculated the income, the amount spent by appellant for purchase of various properties in his own name and in the names of his wife and children, the amount spent on construction of the properties mentioned in the reference, amount spent for purchasing vehicles, amount paid for utility bills and fees of his children are as under:-- {{DATA MISS ARANGE}} Years of income/amount Amount spent/income Rs,5,32,800. The amount of Rs,79,200 is in comes to 4 tons. Sine the rates given in .
1950 to 1987 Rs,20,97,822 Rs,6,00,000 minus Rs,14,97,822 Rs,1,70,109 plus Rs,16,67,931 Rs,88,200 minus. Rs,15,79,731 Rs,1,79,034 plus Rs,17,58,765 Rs,1,96,191 plus Rs,19,54,956 Rs,1,92,696 minus Rs,17,62,260 Rs,9,93,296 minus Rs,7,68,964 Rs,2,21,464 plus Rs,9,90,428 Rs,2,28,016 plus Rs,12,18,444 Rs,1,25,166 minus Rs,10,93,278 credit Rs,15,45,474 minus. Rs,4,52,196 Red entry Rs .2 ,36,017 Rs,2,16,179 Red entry Rs,3,16,923 minus Spent on construction of house at Hayatabad in Phase I in 1987 Income of the year 1987-88 Purchased. Plot No,148 at Hayatabad, Peshawar on 16-4-1988 Income of the year 1988-89 Income of the year 1989-90 Purchased land measuring 7 Kanals, 8 Marlas in Chak Mardan on 13-1-1990 Purchased 6 Kanals land at Nishatta Road, Mardan on 21-8-1990 and 9-11-1994, this amount is duly admitted by the appellant in his statement. Income of the year 1990-91 Income of the year 1991-92 Spent on the fee of his son Imran in Fazal Haq College, Mardan w,e,f, 1985-91 Purchased land measuring 59 Kanals, 7 Marlas in Chak Mardan on 6-3-1991 and 20-5-1996 Income ofthe year 1992-93 Purchased land measuring 35 Kanals, 9 Marlas at Ferozpura Takht Bhai on Rs,81,25,418 Red entry 21-9-1992 Rs,5,02,058 plus Income of the year 1999- Rs,5,33,102 Red entry 2000 Rs,40,000 minus Purchased land measuring 1 Rs,76,23,360 Red entry Kanal at Ferozepura Takht Rs,1,03,480 minus Purchased land measuring 11 Bhai on 21-9-1992 . Kanals, 11 Marlas at Rs,5,37,102 Red entry Ferozpura, Tehsil Takht Rs,2,68,935 Income of the year 1993-94 Bhai on 5-6-1999.
Rs,304,167 Red entry Rs,77,26,840 Red entry Rs,2,73,660 plus Income of the year 1994-95 Rs,3,30,708 minus Purchased land measuring 12 Kanals, 14 Marlas at Chak Rs,3,057 Red entry Mardan on 27-10-1999.
Rs,10,42,488 minus Spent on the construction of house at Hayatabad, Peshawar. Rs,80,57,548 Red entry Purchased Plot No,172-F at Rs,1,50,000 minus Kanju Township, Swat on Rs,10,72,995 Red entry 1-8-1991.
Rs,42,10,488 minus Purchased land measuring 1 Rs,82,07,548 Red entry Kanal, 7 Marlas at Sugar Mills Road, Mardan in the names of his children and wife by the appellant. Rs,3,14,927 minus Rs,85,22,475 Electricty charges w,e,f, 1997 to 2000 Rs,52,83,483 Red entry Rs,59,977 minus Gas charges for the years Rs .26,59,681 Spent on construction of plaza at Sugar Mills Road, Rs,85,82,452 Red entry 1998 to 2000 Mardan. Rs,59,439 telephone charges For the year 2000.
Rs,79,43,164 Red entry Rs,86,41,891 Red entry Rs,3,04,383 plus Income of the year 1995-96 Rs,45,940 minus Fee of Imran in Preston Rs,76,38,781 University for the years Rs,3,13,833 plus Income of the year 1996-97 1997-98.
Rs,73,24,948 Red entry Rs,86,87,831 Red entry Rs,16,97,808 minus Purchased land measuring 65 Kanals, 4 Marlas at Chak Rs,68,500 minus Fee of Haroon in October, 1998 Mardan on 29-2-1997. Rs,87,56,331 Red entry Rs,90,22,756 Red entry Rs,78,720 minus Fee of Gul Sanga in Beacon Rs,3,95,280 plus Income of the year 1997-98 House with effect from 1994 to 1999.
Rs,86,27,476 Red entry Rs,88,35,051 Red entry Rs,5,02,058 plus Income of the year 1998-99 Rs,30,000 minus Fee of Gul Sanga in Fatima Jinnah Degree College.
Rs,88,65,051 Rs,5,00,000 plus Purchase Pajero Jeep Rs,93,65,051 Rs,2,90,000 plus Purchased Suzuki Car Rs,96,55,051 Rs,14,629 minus Fee paid for Mali' Rukh (daughter) in Medical College from 1992-1997.
Rs,96,69,680 Red entry Rs,37,722 minus Fee paid for Haroon (son)
Rs,97,07,402 Red entry Rs,2,58,492 plus bank balance Rs,99,65,894 red entry {{DATA MISS ARANGE}}
51. The abovementioned figures show that the total agricultural income of the appellant from 1950 till 2000 was Rs,59,11,360, whereas he had spent a sum of Rs,99,65,894 in excess for purchase of various properties in his own name, 'in the names of his wife and children. He also spent considerable amount which has been mentioned above in detail on construction of properties, purchase of vehicle and also paid huge amount towards utility bills and fees for children, the total of which comes to Rs,99,65,894. There is a difference of Rs,99,65,894 between his income and amounts spent by him i,e, he has spent Rs,99,65,894 more than what he had earned. He has not been able to furnish any plausible explanation about the sources as to wherefrom he received such huge amount and could manage to spend the said amount.
52. So far as the amount of income derived from salaries of the appellant is concerned, it is admitted position- that appellant earned Rs,17,46,480 towards salaries from the date of his joining service till filing of Reference against him. Although this amount of monthly salary was not sufficient to make both ends meet of appellant especially keeping in view the luxurious and lavish life-style of the appellant and his family members. Even the yearly income derived from agricultural income of the property added with the monthly salary was not sufficient to meet his expenses but still taking very lenient view, we presume that the appellant and his family members would maintain themselves with the amount of monthly salary only. We have thus separated the agricultural income and the entire amount from the agricultural property has been accounted for in the above paragraphs.
53. Another factor which we want to clarify here is about the prices of the landed properties and the amount of construction spent thereon. When we looked into the rates of the landed properties and the amounts spent on their construction fixed by the NAB Authorities, the same sounded very high and no reliable evidence in support of the market prices was available on record. The appellant also failed to point out current evaluation excepting the evaluation or ,constructed building done through Engineer Mumtaz Alam (D.W.3). The learned trial Court had fairly fixed the prices of the landed property in the light of Notifications of Deputy Commissioner whereby value of land has been fixed for the purposes of recovery of taxes. We are aware of the fact that such Notifications are issued by the Deputy Commissioners not for fixing the value of the land but only for collection of land revenue and other taxes but one can draw clear cut idea about the market value of the property from such Notifications.
54. In absence of any authentic proof regarding prices of the landed properties, purchased by appellant in his name and in the names of his wifd and children, we while concurring with the learned trial Court relied upon the prices fixed through Notifications of Deputy Commissioners. We may mention here that we did not take into consideration the market value of landed properties fixed by the NAB Authorities as the same are exorbitant. We also did not agree with the amount spent for construction of properties mentioned in the Reference because those too were also on very high side. We have, however, taken the amount spent for construction given by Engineer Mumtaz Alam (D.W.3) and by the appellant in his statement recorded under section 342, Cr.P.C.
55. In the above paragraphs we have held that three properties i,e,
(i) .Plot No,90-D, Street No,37 measur-ing 2 Kanals in Phase I, Hayatabad, Peshawar allotted in the name of Mst. Nasim Begum on 24-6-1979 against a sum of Rs,74,000;
(ii) Plot measuring 1 Kanal, 10 Marlas situated at Haibullah Colony, Abbottabad (in the name of Mst.
Nasim Begum) and
(iii) Plot measuring 2 Kanals bearing No,30-G/4 Phase II, Hayatabad allotted in the name of Mst.
Zakia Begum in the year 1982 on price of Rs,1,15,000 were not "Benamis", and have nothing to do with the appellant.
56. The abovementioned calculations made in the above paras. Show that till 1992 the appellant had sufficient money to purchase properties but thereafter, he did not have any amount in his credit to either purchase any landed property or to spend any amount for their construction. He has also not been able to give any lawful justification for spending huge amount on purchase of vehicles and payment of utility bills etc. In short he has not been able to satisfactorily account for Rs,99,65,894. This amount is held to be disproportionate to his legal sources of income and therefore, it is held that this amount of Rs,99,65,894 was acquired and obtained by him through corruption and corrupt practices, therefore, the following properties purchased in the names of appellant, his wife and children along with construction if any are liable to forfeiture to the appropriate Government/ State:--
(i) Land measuring 35 Kanals, 9 Marlas situated at Ferozpur Takht Bhai purchased vide Mutation No,40 attested on 21-9-1992 Exh.P.W.4/2.
(ii) Land measuring 1 Kanal situated at Ferozpur Takht Bhai purchased vide Mutation No, 41 attested on 21-9-1992, Exh.P.W.4/3.
(iii) Land measuring 1 Kanal, 17 Marlas situated at Sugar Mills Road, Mardan purchased in the names of wife of the appellant, and children vide Mutation Nos.14387, 14388, 14389, 14390 and 14391 attested on14-4-1994 Exh.P.W.3/3 to Exh.P.W.3/7.
(iv) Land measuring 65 Kanals, 4 Marlas at Chak Mardan purchased vide Mutations No, 5581 attested on 29-5-1996 Exh.P.W.3/9, No,9971, attested on 16-3-1991 Exh P W .3/10 and No,11650 attested on 31-7-1994 Exh.P.W.3/11.
(v) Land measuring 11 'Canals, 11 Marlas at Ferozpur Takht Bhai purchased vide Mutation No,293 attested on 16-6-1999.
(vi) Land measuring 12 Kanals, 14 Marlas at Chak Mardan purchased vide Mutation No,1846 attested on 27-10-1997 Exh.P.W.3/8.
(vii) Plot No,172-F measuring 1 Kanal at Kanju Township allotted on 1-8-1991 Exh.P.W.8/2.
57. It is also held that the amount spent on construction of properties, payment of utility bills, fees of children of appellant, for purchase of vehicles and the amount kept by him in Account No,1487-7 H.B.L., Swabi Branch and Account No,2971 at A.B.L. Charsadda Branch i,e, Rs,2,58,492 was also not earned by him through lawful means and the same had been earned by corruption and corrupt practices. The amount lying in the abovementioned Accounts is also forfeited to Government/State. We would also not forfeit/confiscate the amount lying in PLS Account No,3819-0 at N.B.P. Maneri Branch Swabi, because the amount lying there is the amount of sale consideration of plot measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad sold by Mst. Nasim Begum. We would also not order for confiscation of vehicles i,e, Pajero Jeep and Suzuki car giving the appellant the benefit that he must have earned allowances/T.A./D.A. During his service and we also give him the margin of human error in calculating his agricultural income.
58. We, therefore, have no alternative but to maintain the conviction of the appellant under section 9(v) of NAB Ordinance, 1997. So far as his sentence under section 10(a) of NAB Ordinance, 1999 of 7 years' imprisonment and fine of Rs,3,00,00,000. (Rupees Three Crore) imposed by the learned Accountability Court is concerned, keeping in view the agricultural income derived by the appellant from year 1950 till 2000 (mentioned above), we reduce the sentence from 7 years to 4 years' R.I. Also reduce the amount of fine from Rs,3,00,00,000 (Rupees three crores to Rs,10 millions (Rupees one crore) only. The amount of fine shall be paid by the convict within a period of two months to the State failing which it shall be set off against the forfeited properties in terms of section 11 of the NAB Ordinance, 1999. He shall also be disqualified for ten years for holding any public office as per section 15 of the NAB Ordinance, 1999. Benefit of section 382-B, Cr.P.C. Shall also stand extended to him. With the above modification the appeal is dismissed.
59. So far as the writ petition filed by Mst. Nasim Begum and others (children of appellant) is concerned, the same deserves dismissal for the simple reason that Mst. Nasim Begum and the children were served with notices to justify their means of earnings but they utterly failed to avail the opportunity. Mst. Nasim Begum though examined two D.Ws. In her defence but she failed to show any lawful source of income. She not only failed to prove that the gold ornaments were gives to her by her father and mother-in-law at the time her marriage, but she also failed to prove that she generated some amount by selling the same. She also failed to prove that she was being given Rs,5,000 per month by her father. The coly property which she could prove in her name was that she acquired land measuring 1 Kanal, 10 Marlas at Habibullah Colony, Abbottabad after the death of her father and that the shares of her brothers and sisters were surrendered in her favour in the said plot. She also proved that she acquired land measuring 11 Kanals, 11 Marlas in the year 1998 through inheritance from her brother vide Mutation No,259 attested on 11-$-199$ Exh.D.W.4/N-1.
Since we have held that Mst. Nasim Begum was lawful owner of Plot measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad, 'which she had sold for a sum of Rs,10,58,999 vide Mutation No,10755 Exh.P.W.23/D-4, therefore, we hold that the amount of Rs,9,63,000 in PLS Account No,3819-0 in the name of appellant at National Bank of Pakistan Maneri Branch, Swabi is the amount of sale consideration of the said plot. The children (other petitioners) neither appeared before the learned Accountability Court nor bothered to give justification of their earnings. On the other hand Ikram Shah appellant in his statement recorded under section 342, Cr.P.C. Admitted having purchased the properties mentioned in the Reference in the names of his wife and children.
The writ petition having no merit is dismissed with no orders as to costs.
' Copy of this judgment should be supplied to S.M.B.R. For compliance of directions made in page 46 of this judgment (herein page 1417).